Lena LARSON, Respt.,

v.

overruling a demurrer to the complaint in an action brought to recover damages because of

(........Minn.........)

*1. The right to the possession of a dead body for the purposes of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin, and the right of the surviving wife (if living with her husband at the time of his death), is paramount to that of the next of kin. 2. This right is one which the law recognizes and will protect, and for any infraction of it, such as an unlawful mutilation of the remains, an action for damages will lie. In such an action a recovery may be had for injury to the feelings and mental suffering resulting directly and proximately from the wrongful act, although no actual pecuniary damage is alleged or proven.

A

(November 10, 1891.)

PPEAL by defendant Chase from an order of the District Court for Hennepin County *Head notes by MITCHELL, J.

NOTE.-Rights and duties in regard to the burial of the dead.

It is universally recognized that there is a duty owing either to society or decedent that the body of a deceased person shall be decently buried. Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 238, 14 Am. Rep. 667; Chapple v. Cooper, 13 Mees. & W. 252; Queen v. Stewart, 12 Ad. & El. 773; Gilbert v. Buzzard, 2 Hagg. Consist. 333; Patterson v. Patterson, 59 N. Y. 583, 17 Am. Rep. 384.

This duty is imposed primarily on the executor where there is a testamentary disposition. 2 Bl. Com. 508; Patterson v. Patterson, supra; Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506; Williams v. Williams, L. R. 20 Ch. Div. 659.

The executor has the right to direct in what way the funeral is to be conducted and there is an obligation on him to pay the expenses. Hewett v. Bronson, 5 Daly, 7.

It seems that the executor in directing the form of the burial should obey the expressed reasonable wishes of the testator as to the disposition of his remains even though they are not in accord with the wishes of the next of kin. Re Denison, 31 Leg.

Int. 196.

The estate of the decedent is bound in the hands of his executor for the payment of the expenses of the funeral, though there is some conflict in authority as to whether the estate is liable directly to the one furnishing the services or to the executor after he has settled the expenses. See Hapgood v. Houghton, 10 Pick. 156; Campfield v. Ely, 13 N. J. L. 150: Myer v. Cole, 12 Johns. 349; Dermott v. Field, 7 Cow. 58; Edwards v. Edwards, 2 Cromp. & M. 612; Moak's notes to Re Bettison, 12 Eng. Rep. 658; Re St. George in the East, 18 Eng. Rep. 423.

The right and duty of the personal representative terminate with the burial. Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506.

Griffith v. Charlotte, C. & A. R. Co. 23 S. C. 25, 24 Am. Law Reg. N. S. 586, holds that the administrator has no such property in the body of his decedent as will enable him to recover damages for its mutilation through the negligence of a railroad company.

In the absence of a testamentary disposition the duty of burial is cast upon other persons depending

of the dead body of plaintiff's husband. Affirmed.

The facts are stated in the opinion. Messrs. Bradish & Dunn and Babcock & Garrigues, for appellant:

Damages for the alleged trespass upon the body of the deceased husband, if any, should go, not to the surviving widow, but to the general estate of the deceased, which must pay the funeral expenses in preference to any other claim. "The administrator must bury the deceased in a manner suitable to the estate he leaves behind him."

Wms. Exrs. pp. 829, 1523; 2 Bl. Com. 508. An administrator cannot maintain an action for damages for the mutilation of the body of his intestate, because when mutilated "the man was dead, suffered no pain, no mental anguish, incurred no doctor bills, lost no time, and because a corpse has no value and cannot therefore be injured or damaged."

Griffith v. Charlotte, C. & A. R. Co. 23 S. C. 38; Bishop, Crim. Law, § 780; 4 Bl. Com. 235;

largely upon the circumstances of the particular case. It may fall upon the administrator. Wynkoop v. Wynkoop, supra.

A parent must bury his deceased child. Reg. v. Vann, 2 Denison, Crim. Cas. 325.

In case the person is without property it seems that he must be buried by the one under whose roof he died. Queen v. Stewart, 12 Ad. & El. 778.

The husband must bury his wife. Jenkins v. Tucker, 1 H. Bl. 90; Ambrose v. Kerrison, 10 C. В. 776; Chapple v. Cooper, 13 Mees. & W. 252. See also Sears v. Giddey, 41 Mich. 590.

Right to control disposition of body. Controversies as to the disposition of the bodies of deceased persons are within the jurisdiction of equity. Weld v. Walker, 130 Mass. 423, 39 Am. Rep. 465; Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 14 Am. Rep. 667.

In conflicts between the husband and next of kin as to the disposition of the body of the deceased wife, it would seem that the duty imposed upon the husband to bury the remains carries with it the right to dictate as to the manner and place of their disposition, and so is the authority. Durell v. Hayward, 9 Gray, 248, 69 Am. Dec. 248; Lakin v. Ames, 10 Cush. 221; Cunningham v. Reardon, 98 Mass. 538, 96 Am. Dec. 670; Cook v. Walley (Colo.) Oct. 26, 1891; Johnston v. Marinus, 18 Abb. N. C. 72.

In an Ohio case reported in 4 Am. Law Times, 127, it was held that a husband might recover damages for the maltreating of the dead body of his wife by physicians to whom the body had been delivered for the purpose of dissecting and examining the throat. See also 4 Alb. L. J. 56; 3 Chicago, Legal News, 378.

In analogy to the right of a husband, some early cases hold that the wife has the duty and right of arranging the burial of her deceased husband, it being held that decent Christian burial of her husband is of such benefit to a widow that though an infant she is bound by her contract for the furnishing of it. Chapple v. Cooper, 13 Mees. & W. 252.

The doctrine that the next of kin have rights as to the disposition of the body of a decedent if not originating in, at least are given definite form by, the report of the referee in the Case of the Wynkoop v. Wynkoop, 42 Pa. 300, 82 Am. Dec. 506; 2 East, P. C. 652; 12 Coke, 106, Frazier's note; Guthrie v. Weaver, 1 Mo. App. 136; Snyder v. Snyder, 60 How. Pr. 368; Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 242, 14 Am. Rep. 667.

How, then, can a surviving widow maintain such action, who is not next of kin, is not charged with with the burial or burial expenses, and has no right or control over the body of her deceased husband after burial?

16 Am. & Eng. Encyclop. Law, p. 704, and cases cited: Wynkoop v. Wynkoop, supra; Minn. Gen. Stat. chap. 46, § 3, subsecs. 9, 10, and § 7, chap. 51, §3, subsecs. 1, 2.

To entitle one to bring an action for an injury to any specific object or thing, he must have a property therein absolute or qualified. If he has no such property, he can have no cause of action, however flagrant or reprehensible the act complained of may be.

Bishop, Non-cont. Law, § 22; Grifith v. Charlotte, C. & A. R. Co. supra; 1 Addison, Torts, § 10.

In the absence of physical injury, injury to feelings and sensibilities is not an element of damages.

Keys v. Minneapolis & St. L. R. Co. 36 Minn. 293; Indianapolis & St. L. R. Co. v. Stables, 62 Ill. 313; Stone v. Evans, 32 Minn.

Widening of Beekman Street, which is reported in a note to 4 Bradf. 504, in which two of the conclusions are that the right to bury a corpse and to preserve its remains is a legal right which the courts of law will recognize and protect, and that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin. This report was afterward adopted by the court. It has been bitterly opposed. One recent writer in 10 Central Law Journal, p. 304, asserts that it is an obiter opinion full of errors and opposed to the long line of decisions which hold that there is no property in a corpse. It has, however, received recognition by the courts.

Bogert v. Indianapolis, 13 Ind. 138, holds that the right of burial belongs to the surviving relatives in the order of inheritance, and it cannot be taken out of their hands if they are able and willing to perform the duty. And in Renihan v. Wright, 9 L. R. A. 514, 125 Ind. 536, the court says that the right to the custody of the corpse and the right to superintend its burial do not belong to the executor or administrator but next of kin.

The conclusion reached by the learned referee in the Beekman Street Case seems to have thrown doubt upon the question as to whether the widow or next of kin have preference in the disposition of the body of the deceased husband.

Authors of notes and articles in legal periodicals have taken opposite sides upon the question arguing for the most part from the same premises. Francis King Carey, in 19 Am. Law Rev. 263, concludes that the husband and wife are required by law, and have the right, to bury each other.

John F. Baker in 10 Albany Law Journal, 71, concludes (1) that the right to protect and bury a corpse is in the executor; (2) in the absence of testamentary disposition it devolves upon the widow, husband, or next of kin;. (6) during her lifetime the widow has control of the place of interment of her deceased husband and so the husband has control over the remains of his wife.

the right to select and control the place of burial should belong to the heir, giving as his reasons that the heir might protect the remains from harm if they were buried upon his own land; while in case of the death of the widow the land upon which the burial took place would pass to strangers who would have no interest in protecting the re mains, and that the heir could then afford no protection.

Of the recent cases Secord v. Secor, 31 Leg. Int. 268, and Lester v. Lester, referred to by Mr. Moak, in his note to Re St. George in the East, 18 Eng. Rep. 427, both decided by the New York Supreme Court, state that the right to control the burial of the husband rests with the widow.

From the report of the Special Term decision in Secord v. Secor, 18 Abb. N. C. 78, note, it appears, however, that the controversy arose after burial when of course considerations arise different from those existing before burial.

Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506, seems to recognize the superior right of the widow prior to the interment.

In Snyder v. Snyder, 60 How. Pr. 368, the court states that in the absence of a contention prior to burial as to the right between relatives to designate the place of burial the broad doctrine that it rests exclusively with the next of kin can hardly be considered as a judicial conclusion of the right of the widow, that in case of contention the question must be solved upon equitable grounds that to lay down the inflexible rule that the widow is to be preferred to the children must sometimes result in great harshness and outrage, and conclude that, under the circumstances of that case, the claim of the son should be preferred to that of the widow.

In States where the first right to administer upon the deceased husband's property rests with the widow, it would seem that under the authorities cited above she would have the right and duty to control the burial.

For a very full index to the text-books and maga

Mr. W. H. Winters, assistant librarian of the New York Law Institute, in 18 Abb. N. C. 75. H. P. F.

person, is the right of possession of the body by the next of kin for the purposes of burial only. That right it is not claimed by the plaintiff, has been interfered with by defend

ants.

5 Am. &. Eng. Encyclop. Law, 115, and

note.

The rule of injuria sine damno applies with full force to this case.

1 Sedgw. Dam. 40; Hutchins v. Hutchins, 7 Hill, 104; Sroan v. Tappan, 5 Cush. 104; Cook v. Cook, 100 Mass. 194.

No value can be placed on mental pain and anxiety, and therefore courts will not attempt to redress such injuries.

Lynch v. Knight, 9 H. L. Cas. 577, 598; Hutchins v. St. Paul M. & M. R. Co. 44 Minn. 5; Hyatt v. Adams, 16 Mich. 197.

Messrs. Arctander & Arctander, for respondent:

As to whether or not there can be any property right in a dead body, and if there is such a right in whom it would rest, see article by Mr. Francis King Carey, on the Disposition of the Body after Death, found in 19 Am. Law Rev. 251; also article on the Ownership of a Corpse before Burial, by R. S. Guernsey, in 10 Cent. L. J. 303, 325.

The bodies of the dead belong to the surviving relations, in the order of inheritance, as property, and they have the right to dispose of them as such.

Bogert v. Indianapolis, 13 Ind. 134. See also Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 237, 238, 14 Am. Rep. 667.

A surviving wife or husband has the right of burial, and in fact the duty of burial is thrown upon her or him, as the case may be, and where there is no expressed wish of the testator as to the disposition of the remains, the wishes of the surviving husband or widow will control against the next of kin even.

Durell v. Hayward, 9 Gray, 248, 69 Am. Dec. 284; Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506; Secord v. Secor, 31 Leg. Int. 268; Ambrose v. Kerrison, 10 C. B. 776; Chapple v. Cooper, 13 Mees. & W. 259; Jenkins v. Tucker, 1 H. Bl. 91; 4 Am. Law Times, 127.

We take issue with the statement that injury to the feelings and mental anguish and distress will not support an action for damages independent of an actual bodily injury to the person and property.

5th article on Injury to the Feelings, in Thompson's Law of Electricity, pp. 369-389.

The Supreme Courts of Texas, Tennessee, Alabama, Indiana, North Carolina and Kentucky and several federal courts have recently held that damages may be given in an action against a telegraph company for the failure to transmit and deliver a telegram, where the only element of damages consists in injury to the feelings, and where there is no element of physical suffering or pecuniary loss.

Stuart v. Western U. Teleg. Co. 66 Tex. 580, 59 Am. Rep. 623; Gulf, C. & S. F. R. Co. v. Wilson, 69 Tex. 739: Western U. Teleg. Co. v. Cooper, 71 Tex. 507; Western U. Teleg. Co. v. Broesche, 72 Tex. 654; Western U. Teleg. Co. v. Simpson, 73 Tex. 423; Western U. Teleg. Co. v. Adams, 75 Tex. 531; Wadsworth v. Western U. Teleg. Co. 86 Tenn. 695; Reese v.

294; Beasley v. Western U. Teleg. Co. 39 Fed. Rep. 181; Western U. Teleg. Co. v. Henderson, 87 Ala. 510; Thompson v. Western U. Teleg. Co. 106 N. C. 549; Youngv. Western U. Teleg. Co. 107 N. C. 370; Thompson v. Western U. Teleg. Co. 107 N. C. 449; Chapman v. Western U. Teleg. Co. (Ky.) June 14, 1890.

Mitchell, J., delivered the opinion of the court:

This was an action for damages for the unlawful mutilation and dissection of the body of plaintiff's deceased husband. The complaint alleges that she was the person charged with the burial of the body, and entitled to the exclusive charge and control of the same. The only damages alleged are mental suffering and nervous shock. A demurrer to the complaint, as not stating a cause of action, was overruled, and the defendant appealed.

The contentions of defendant may be resolved into two propositions: First, That the widow has no legal interest in or right to the body of her deceased husband, so as to enable her to maintain an action for damages for its mutilation or disturbance; that if anyone can maintain such an action, it is the personal representative. Second, That a dead body is not property, and that mental anguish and injury to the feelings, independent of any actual tangible injury to person or property, constitute no ground of action. Time will not permit, and the occasion does not require, us to enter into any extended discussion of the history of the law, civil, common, or ecclesiastical, of burial and the disposition of the body after death. A quite full and interesting discussion of the subject will be found in the report of the referee (Hon. S. B. Ruggles) in Re Beekman Street, 4 Bradf. 503. See also Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 14 Am. Rep. 667; 19 Am. L. Rev. 251.

Upon the questions who has the right to the custody of a dead body for the purpose of burial, and what remedies such person has to protect that right, the English common-law authorities are not very helpful or particularly in point, for the reason that from a very early date in that country the ecclesiastical courts assumed exclusive jurisdiction of such matters. It is easy to see, therefore, why the commonlaw in its early stages refused to recognize the idea of property in a corpse, and treated it as belonging to no one unless it was the church. The repudiation of the ecclesiastical law and of ecclesiastical courts by the American colonies left the temporal courts the sole protector of the dead and of the living in their dead. Inclined to follow the precedents of the English common-law, these courts were at first slow to realize the changed condition of things, and the consequent necessity that they should take cognizance of these matters and administer remedies as in other analogous cases. has been accomplished by a process of gradual development, and all courts now concur in holding that the right to the possession of a dead body for the purposes of decent burial belongs to those most intimately and closely connected with the deceased by domestic ties, and that this is a right which the law will recogInize and protect. The general, if not univer

This

sal, doctrine is that this right belongs to the surviving husband or wife or to the next of kin; and while there are few direct authorities upon the subject, yet we think the gener general tendency of the courts is to hold that, in the absence of any testamentary disposition, the right of the surviving wife (if living living with her husband at the time of his death)is paramount to that of the next of kin. This is in accordance, not only with common custom and general sentiment, but also, as we think, with reason. The wife is certainly nearer in point of relationship and affection than any other person. She is the constant companion of her husband during life, bound to him by the closest ties of love, and should have the paramount right to render the last sacred services to his remains after death. But this right is in the nature of a sacred trust, in the performance of which all are interested who were allied to the deceased by the ties of family or friendship, and, if she should neglect or misuse it, of course the courts would have the power to regulate and control its exercise. We have no doubt, therefore, that the plaintiff had the legal right to the custody of the body of her husband for the purposes of preservation, preparation, and burial, and can maintain this action if maintainable at all.

The doctrine that a corpse is not property seems to have had its origin in the dictum of Lord Coke (3 Co. Inst. 203), where, in asserting the authority of the church, he says: "It is to be observed that in every sepulchre that hath a monument two things are to be considered, viz., the monument, and the sepulture or burial of the dead. The burial of the cadaver that is caro data vermibus [flesh given to worms] is nullius in bonis, and belongs to ecclesiastical cognizance; but as to the monument action is given, as hath been said, at the common law, for the defacing thereof." If the proposition that a dead body is not property rests on no better foundation than this etymology of the word "cadaver," its correctness would be more than doubtful. But while a portion of this dictum, severed from its context, has been repeatedly quoted as authority for the proposition, yet it will be observed that it is not asserted that no individual can have any legal interest in a corpse, but merely that the burial is nullius in bonis, which was legally true at common law at that time, as the whole matter of sepulture and custody of the body after burial was within the exclusive cognizance of the church and the ecclesiastical courts. But whatever may have been the rule in England under the ecclesiastical law, and while it may be true still that a dead body is not property in the common commercial sense of that term, yet in this country it is, so far as we know, universally held that those who are entitled to the possession and custody of it for purposes of decent burial have certain legal rights to and in it which the law recognizes and will protect. Indeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., some

tion whether a corpse is property in the ordinary commercial sense, or whether it has any value as an article of traffic. The important fact is that the custodian of it has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right by mutilating or otherwise disturbing the body is an actionable wrong. And we think it may be safely laid down as a general rule that an injury to any right recognized and protected by the common law will, if the direct and proximate consequence of an actionable wrong, be a subject for compensation.

It is also elementary that while the law as a general rule only gives compensation for actual injury, yet, whenever the breach of a contract or the invasion of a legal right is established, the law infers some damage, and, if no evidence is given of any particular amount of loss, it declares the right by awarding nominal dam ages. Every injury imports a damage. Hence the complaint stated a cause of action for at least nominal damages. We think it states more. There has been a great deal of misconception and confusion as to when, if ever, mental suffering, as a distinct element of damage, is a subject for compensation. This has frequently resulted from courts giving a wrong reason for a correct conclusion that in a given case no recovery could be had for mental suffering, placing it on the ground that mental suffering, as a distinct element of damage, is never a proper subject of compensation, when the correct ground was that the act complained of was not an infraction of any legal right, and hence not an actionable wrong at all, or else that the mental suffering was not the direct and proximate effect of the wrongful act. Council cites the leading case of Lynch v. Knight, 9 H. L. Cas. 577-598. We think he is laboring under the same misconception of the meaning of the language used in that case into which courts have not infrequently fallen. Taking the language in connection with the question actually before the court, that case is not authority for defendant's position. unquestionably the law, as claimed by appellant, that "for the law to furnish redress there must be an act which, under the circumstances, is wrongful; and it must take effect upon the person, the property, or some other legal interest, of the party complaining. Neither one without the other is sufficient." This is but another way of saying that no action for damages will lie for an act which, though wrongful, infringed no legal right of the plaintiff, although it may have caused him mental suffering. But, where the wrongful act constitutes an infringement on a legal right, mental suffering may be recovered for, if it is the direct, proximate, and natural result of the wrongful act.

It is

It was early settled that substantial damages might be recovered in a class of torts where the only injury suffered is mental, -as for example, an assault without physical contact. So, too, in actions for false imprisonment, where the plaintiff was not touched by the defendant, substantial damages have been recovered, though physically the plaintiff did not The same is true in actions for breach of promise of marriage. Wherever the act complained of constitutes a violation of some legal right of the plaintiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and natural consequence of the wrongful act. That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated is too plain to admit of argument. In Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759, where the defendant entered upon plaintiff's land, and dug up and removed the dead body of his child, it

It is true that in that case the court takes occasion to repeat the old saying that a dead body is not property, and makes the gist of the action the trespass upon plaintiff's land; but it would be a reproach to the law if a plaintiff's right to recover for mental anguish resulting from the mutilation or other disturbance of the remains of his dead should be made to depend upon whether in committing the act the defendant also committed a technical trespass upon plaintiff's premises, while everybody's common sense would tell him that the real and substantial wrong was not the trespass on the land, but the indignity to the dead.

Order affirmed.

about a woman who was in company with the prisoner and deceased at or immediatelý previous to the killing, evidence that the prisoner an hour previous to the homicide had put a pistol to the woman's head is admissible

on the question of motive, where the theory of

the Commonwealth is that the motive was jealousy.

2. An inaccuracy in an instruction on an immaterial point, and not prejudicial, is not ground for reversal.

3. Upon a trial for murder for shooting with a pistol upon a street corner, an instruction that to convict of murder in the first degree the jury must be satisfied that "premeditation and the deliberate intent were there not merely when the shot was fired but previously" is all the prisoner is entitled to ask, and a request that the jury must find "that the prisoner acted upon as clear and premeditated a motive as he who kills by poison or by lying in wait," is properly refused.

4. A prisoner has no right to have the jury instructed in any particular form of words under a statute requiring the court to answer his points fully. It is sufficient if the law applicable to his case is plainly, fully, and accurately stated in such form as the judge may

choose.

5. A request to charge in a murder trial "that the jury are judges of the law as well as of the facts, and may, upon the whole case, determine the grade of the offense," is properly answered by charging that "the statement

of the law by the court is the best evidence of the law within the jury's reach, and viewing it as evidence only the jury must be guided by what the court has said with reference to the law," under

NOTE.-On the question of the right of a jury in a criminal case to determine the law as well as the facts the exhaustive discussion by Mitchell, J., in his concurring opinion makes further annotation superfluous.

the Court of Oyer and Terminer for Philadelphia County County convicting convicting him of the murder of Eugene McGinnis. Affirmed.

The points raised for the consideration of the court sufficiently appear in the opinion.

Messrs. James L. Stanton and Maxwell Stevenson for appellant.

Mr. George S. Graham for the Commonwealth.

Paxson, Ch. J., delivered the opinion of the court:

The first assignment of error is to the admission of the conduct of the prisoner and the woman Cross an hour before the murder. It was an undisputed fact that the prisoner, the same woman Cross, and the deceased were together when the killing took place, or immediately before, even if the woman did, as she testified, run away before the shot was actually fired. Both the prisoner and the woman, as well as some other witnesses, testified that the quarrel was about the woman, though the exact cause of it is differently related. The theory of the Commonwealth was that the killing was done from jealousy; and under these circumstances the conduct of the prisoner an hour previous, in putting a pistol to her head, had a bearing on his state of mind towards her, and therefore on the existence of the supposed motive for the killing. For such purpose it was clearly admissible.

The second and eighth assignments, inclusive, and the tenth, may be grouped together. They are minute criticisms on the language of the charge. Thus the second is based on the statement of the judge of the quantity of beer as two gallons, instead of two kettles, -an inaccuracy racy not material to the point of the case, and, so far as it had any bearing, not unfavorable to the prisoner. The evidence as to the history of the transaction